Bright Horizons Family Solutions Ltd v Secretary of State for Communities And Local Government

The unqualified word “school” in the Town and Country Planning (General Permitted Development) (England) Order 2015 does not ordinarily include a nursery. The fact that a nursery provides education, or is treated like a school for particular permitted-development purposes following a specified change of use, does not alter that ordinary meaning. The statutory context may confer rights on particular nurseries, but those rights depend on their planning history and do not establish a general equivalence between schools and nurseries. Class M therefore does not apply to an existing nursery unless the Order expressly brings it within the relevant definition.

The claimant operated a nursery in premises used for that purpose since 1997. It sought a certificate confirming that the installation of portable cabins in the garden was permitted development under Class M of Part 7 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015.

The local planning authority refused the certificate on the basis that Class M applied to schools, colleges, universities and hospitals, but not nurseries. An inspector dismissed the claimant’s appeal. The claimant brought a statutory review under section 288 of the Town and Country Planning Act 1990. The central issue was whether “school” in Class M included a nursery.

1. Claim dismissed. The Inspector had correctly construed Class M and there was no ground to quash his decision.
2. The court’s task was to determine the true construction of the legislation. No deference was owed to the Inspector on that question of law.
3. In its ordinary, unqualified sense, “school” means an institution principally providing general education to young people of school age. An institution for children below school age is ordinarily a nursery or pre-school institution. The provision of some education, or even education as the institution’s main purpose, does not make it a school.
4. The structure of the GPDO reinforced that conclusion. The reference to “a school, college, university or hospital building” showed that the Order did not treat colleges and universities as schools. The Order contained no general provision stating that “school” included nursery.
5. Classes S and T of Part 3 created specific permitted changes of use to a state-funded school or registered nursery. The consequential provisions treated certain nurseries like certain schools because of their planning history. They did not give “school” a general meaning that included all nurseries.
6. The distinction between Classes S and T was material. Premises changed to a registered nursery under Class T could fall within the extended definition of “school” for Class M. Premises changed under Class S were expressly excluded from Class M. A nursery with neither relevant change of use could benefit from Class M only if “school” ordinarily included nurseries, which it did not.
7. The resulting differences between nurseries based on their planning history were neither absurd nor unfair and provided no basis for departing from the ordinary meaning of “school”.

The local planning authority refused the certificate on 9 March 2017. An Inspector dismissed the claimant’s appeal on 26 January 2018. The High Court dismissed the statutory review and upheld the Inspector’s construction of Class M.